This Opinion is Uncorrected and subject to revision by the court.
MELTON, Justice. All the Justices concur.
Following a jury trial, Faud Abdulaziz Mohamud was found guilty of malice murder, felony murder, aggravated assault, and possession of a firearm during the commission of a felony. On appeal, Mohamud contends, among other things, that he received ineffective assistance of counsel and that the trial court made evidentiary errors. For the reasons set forth below, we affirm in part and vacate in part.
1. In the light most favorable to the verdict, the record shows that, on the afternoon of July 21, 2010, Mohamud, Airis Evans-Ingram, Brandi Arden, and Mohamud's brother, Liban, traveled to a gas station located in Lawrenceville, Georgia. Arden drove her car, and she chose a parking spot adjacent to a gas pump. Mohamud had told Arden that he wanted to meet someone named " Curt" at the convenience store. A short time later, a blue Crown Victoria pulled into the parking lot, and Mohamud and Liban had a brief verbal exchange in Somali. Then, Mohamud and Evans-Ingram exited Arden's vehicle and approached the blue Crown Victoria from behind. DeAndre Perkins, who had shot and robbed Mohamud on a prior occasion, was in the passenger seat. Immediately, the driver began reversing the Crown Victoria, and Mohamud shot into the car, killing Perkins. Mohamud and Evans-Ingram jumped back into Arden's vehicle, and Mohamud frantically stated, " He [Perkins] had a gun ... I had to shoot." As they sped away, again, according to Arden, Mohamud stated, " He [Mohamud] was the one that shot him," and, " He [Mohamud] swore on his mom when he saw him he was going to get him." Additionally, Arden was told not to speak to police and that if the police asked about her involvement, to tell them " I wasn't there."
Investigators later recovered a video surveillance recording of the scene of the crime which, from a distance, depicted the sequence of events before and after the shooting. The video does not, however, show Perkins inside the vehicle. Eventually, investigators located Arden and spoke with her regarding the involvement of her vehicle. Soon after, Mohamud was named a suspect and arrested in connection with the shooting.
This evidence was sufficient to enable the jury to find Mohamud guilty of the crimes for which he had been charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). Though Mohamud's defense was that he shot Perkins in order to protect himself, the jury, as the ultimate arbiter of fact, was entitled to reject this claim.
2. Mohamud contends that his trial counsel rendered ineffective assistance by failing to (a) call Evans-Ingram as a witness at trial to support Mohamud's claim of self-defense, (b) call witnesses who would have testified regarding Perkins's general reputation for violence in the community, and (c) request a specifically-tailored jury instruction regarding the definition of a forcible felony.
In order to succeed on his claim of ineffective assistance, [Mohamud] must prove both that his trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U.S. 668 (104 S.Ct. 2052, 80 L.Ed.2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. Id. at 697 (IV); Fuller v. State, 277 Ga. 505 (3) (591 S.E.2d 782) (2004). In reviewing the trial court's decision, " '[w]e accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.' [Cit.]" Robinson v. State, 277 Ga. 75, 76 (586 S.E.2d 313) (2003).
Wright v. State, 291 Ga. 869, 870 (2) (734 S.E.2d 876) (2012).
(a) Mohamud contends that his trial counsel rendered ineffective assistance by not calling Evans-Ingram as a witness. Using hindsight, trial counsel testified that he should have subpoenaed Evans-Ingram and that he had no strategic reason for failing to do so.
But hindsight has no place in an assessment of the performance of trial counsel, the United States Supreme Court having instructed that " [a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Strickland, supra, 466 U.S. at 689 (III) (A). Instead, we " must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id., and to overcome that presumption, [Mohamud] must show that no reasonable counsel would have failed to [call Evans-Ingram as a witness]. See Hayes v. State, 279 Ga. 642, 645 (3) (619 S.E.2d 628) (2005).
Jones v. State, 292 Ga. 593, 600-601 (7) (d) (740 S.E.2d 147) (2013). A review of the evidence of record reveals that ...